Civil litigation revision notes
CASE ANALYSIS
,Rules 1.1 = sets out the overriding objective of CPRs, to deal with cases justly and at
proportionate cost. What does this mean?
- ensuring that the parties are on an equal footing
- saving expense
- dealing with the case in ways which are proportionate to -
- The amount of money involved
, - The importance of the case
- The complexity of the issues; and
- To the financial position of each party
- ensuring that the case is dealt with expeditiously and fairly
- allotting to the case an appropriate share of the court’s resources, while taking into
account the need to allot resources to other cases. (The courts are paid by tax payers
money so this is important).
- enforcing compliance with rules, practice directions and orders
PRE ACTION PROTOCOLS
These protocols govern the steps parties should make before commencing a court
case.
If there a no pre action protocols that apply, the practice direction on pre action
conduct and protocols should be followed. (follow for breach of contract)
Objectives of pre-action conduct and protocols
3. Before commencing proceedings, the court will expect the parties to have exchanged
sufficient information to—
(a) understand each other’s position;
(b) make decisions about how to proceed;
(c) try to settle the issues without proceedings;
(d) consider a form of Alternative Dispute Resolution (ADR) to assist with settlement;
(e) support the efficient management of those proceedings; and
(f) reduce the costs of resolving the dispute.
PRACTICE DIRECTION – PRE-ACTION CONDUCT AND PROTOCOLS
LETTER OF CLAIMS;
6(a). C wiring to D with concise details of claim. Include the basis of the claim,
summary of facts, what C wants from D. If money, how this is calculated.
6 (b). D needs to respond in reasonable time. 14 days for straight forward case.
Maximum 3 months for complex.
REPLY = D needs to confirm is claim is accepted/ not accepted, reasons why.
Explanation of which facts and part of the claim is disputed. D needs to state if
making a counterclaim, provide details of this.
6(c). The parties disclosing key documents relevant to the issues in dispute.
SETTLEMENT AND ALTERNATIVE DISPUTE RESOLUTION;
8. Litigation last resort. Parties should consider negotiation or ADR to enable settling
their dispute without proceedings.
9. Parties should continue to consider the possibility of reaching a settlement at all
times, including after proceedings have been started. Part 36 offers may be made
before proceedings are issued.
, 10. Parties may negotiate to settle a dispute or may use a form of ADR including—
mediation, arbitration, early neutral evaluation, Ombudsmen schemes.
11. If proceedings are issued, court may require evidence that ADR has been
considered. If parties do not respond to invitation to ADR or refuse, could be
considered unreasonable to court. Parties may be asked to pay additional costs.
ADR;
Type of Legally What does it involve? Pros Cons
ADR binding
Mediation No Neutral party is Confidential, doesn’t go Parties may not
negotiator, they will court. reach settlement,
receive written Preserves working compromise at
statements from parties. commercial relationship. best.
Mediator will not make a Low cost solution could be Both parties must
decision. simply allow a simple apology, court have a desire to
negotiation. generally award damages. settle, not always
Can choose mediator, the case.
client focussed, flexible Not appropriate
solutions. Quicker. when expertise
regarding facts and
law needed.
Results not
binding.
Arbitration Yes Parties put case to Confidential, choose Fewer remedies
arbitrator, he listens, arbitrator such as experts available than
looks at evidence and more appropriate than court, doesn’t
decides outcome. If you judge. Issue considered preserve working
don’t agree, take it to more thoroughly relationship. Slow,
court to change. compared to mediation. expensive as
arbitrators/venue
need to be paid. 3rd
parties can’t be
added like
litigation.
Early No Independent judicial Confidential, less Cant test credibility
Neutral evaluator gives expensive and quicker of witnesses, not
Eval confidential assessment. than arbitration or for appropriate for
Promotes settlement litigation, appropriate for non-technical
discussions. technical disputes, disputes.
preserves working
relationship
Litigation Yes Court have wide powers No choice of judge,
(COMPARE) and can enforce remedies. he won’t be expert
3rd parties can be added to in that particular
proceedings when they area. Court
come to light. proceedings public,
CASE ANALYSIS
,Rules 1.1 = sets out the overriding objective of CPRs, to deal with cases justly and at
proportionate cost. What does this mean?
- ensuring that the parties are on an equal footing
- saving expense
- dealing with the case in ways which are proportionate to -
- The amount of money involved
, - The importance of the case
- The complexity of the issues; and
- To the financial position of each party
- ensuring that the case is dealt with expeditiously and fairly
- allotting to the case an appropriate share of the court’s resources, while taking into
account the need to allot resources to other cases. (The courts are paid by tax payers
money so this is important).
- enforcing compliance with rules, practice directions and orders
PRE ACTION PROTOCOLS
These protocols govern the steps parties should make before commencing a court
case.
If there a no pre action protocols that apply, the practice direction on pre action
conduct and protocols should be followed. (follow for breach of contract)
Objectives of pre-action conduct and protocols
3. Before commencing proceedings, the court will expect the parties to have exchanged
sufficient information to—
(a) understand each other’s position;
(b) make decisions about how to proceed;
(c) try to settle the issues without proceedings;
(d) consider a form of Alternative Dispute Resolution (ADR) to assist with settlement;
(e) support the efficient management of those proceedings; and
(f) reduce the costs of resolving the dispute.
PRACTICE DIRECTION – PRE-ACTION CONDUCT AND PROTOCOLS
LETTER OF CLAIMS;
6(a). C wiring to D with concise details of claim. Include the basis of the claim,
summary of facts, what C wants from D. If money, how this is calculated.
6 (b). D needs to respond in reasonable time. 14 days for straight forward case.
Maximum 3 months for complex.
REPLY = D needs to confirm is claim is accepted/ not accepted, reasons why.
Explanation of which facts and part of the claim is disputed. D needs to state if
making a counterclaim, provide details of this.
6(c). The parties disclosing key documents relevant to the issues in dispute.
SETTLEMENT AND ALTERNATIVE DISPUTE RESOLUTION;
8. Litigation last resort. Parties should consider negotiation or ADR to enable settling
their dispute without proceedings.
9. Parties should continue to consider the possibility of reaching a settlement at all
times, including after proceedings have been started. Part 36 offers may be made
before proceedings are issued.
, 10. Parties may negotiate to settle a dispute or may use a form of ADR including—
mediation, arbitration, early neutral evaluation, Ombudsmen schemes.
11. If proceedings are issued, court may require evidence that ADR has been
considered. If parties do not respond to invitation to ADR or refuse, could be
considered unreasonable to court. Parties may be asked to pay additional costs.
ADR;
Type of Legally What does it involve? Pros Cons
ADR binding
Mediation No Neutral party is Confidential, doesn’t go Parties may not
negotiator, they will court. reach settlement,
receive written Preserves working compromise at
statements from parties. commercial relationship. best.
Mediator will not make a Low cost solution could be Both parties must
decision. simply allow a simple apology, court have a desire to
negotiation. generally award damages. settle, not always
Can choose mediator, the case.
client focussed, flexible Not appropriate
solutions. Quicker. when expertise
regarding facts and
law needed.
Results not
binding.
Arbitration Yes Parties put case to Confidential, choose Fewer remedies
arbitrator, he listens, arbitrator such as experts available than
looks at evidence and more appropriate than court, doesn’t
decides outcome. If you judge. Issue considered preserve working
don’t agree, take it to more thoroughly relationship. Slow,
court to change. compared to mediation. expensive as
arbitrators/venue
need to be paid. 3rd
parties can’t be
added like
litigation.
Early No Independent judicial Confidential, less Cant test credibility
Neutral evaluator gives expensive and quicker of witnesses, not
Eval confidential assessment. than arbitration or for appropriate for
Promotes settlement litigation, appropriate for non-technical
discussions. technical disputes, disputes.
preserves working
relationship
Litigation Yes Court have wide powers No choice of judge,
(COMPARE) and can enforce remedies. he won’t be expert
3rd parties can be added to in that particular
proceedings when they area. Court
come to light. proceedings public,
